Standing to Defend Prop. 8

On Thursday, Judge Vaughn Walker denied gay marraige opponents’ motion for a stay of his ruling in Perry v. Schwarzeneggerdeclaring Proposition 8 to be unconstitutional. One of the reasons offered by Judge Walker was that he doubts whether Prop. 8’s defenders have standing to appeal his ruling. Although Judge Walker allowed them to intervene in the case to defend the ballot proposition’s constitutionality when California Attorney General Jerry Brown refused, he does not think they have the requisite interest in the case to satisfy the requirements of Article III standing. This raises some interesing issues, which I discuss below the fold.

Judge Walker wrote in part:

As official proponents under California law, proponents organized the successful campaign for Proposition 8. . . . Nevertheless, California does not grant proponents the authority or the responsibility to enforce Proposition 8. In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal 4th 1055, 1080 (2004). Still less, it would
appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages. While the court has ordered entry of a permanent injunction against proponents, that permanent injunction does not require proponents to refrain from anything, as they are not (and cannot be) responsible for the application or regulation of California
marriage law. See Cal Health & Safety Code § 102180. The court provided proponents with an opportunity to identify a harm they would face “if an injunction against Proposition 8 is issued.” Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific
harm they may suffer as a consequence of the injunction.

Judge Walker goes on to explain that, although he did not address Prop. 8 proponents’ standing to intervene at trial, their intervention does not necessarily confer them with standing to appeal.

If Prop. 8’s proponents lack standing to appeal, it’s possible that Judge Walker’s decision would be dismissed. As Time reports:

at least one constitutional-law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet’s nest he may have been better off leaving undisturbed. “If the proponents don’t have standing to appeal, then it’s entirely plausible that the courts will rule that they did not properly have standing to go to trial,” Vikram Amar, a law professor at the University of California at Davis, told TIME Thursday evening. “This is an issue he glossed over when he allowed them to intervene in the trial.”Amar says that if the Ninth Circuit agrees with Walker that the proponents don’t have standing to appeal, the judges may well decide they shouldn’t have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over. The governor and attorney general would be unlikely to intervene — but on the other hand, come November, voters will choose new candidates for both of those offices.

In that event, what happens next is anybody’s guess. “We’re in uncharted waters here,” Amar told TIME.

While standing to intervene and standing to appeal are not the same thing, if Prop. 8 proponents lack standing to appeal Judge Walker’s decision, I don’t see how they would have had standing sufficient to intervene and provide the primary defense of Prop. 8 in the first place, and without their standing, there would have been no case or controversy and no basis for the trial. In cases with which I am familiar, where intervenors lack standing to appeal a decision it is usually because the court decision did not directly affect their legal interest; an intervenors interest at trial may not be the same as its interest on appeal, depending upon how a case is resolved. Here, however, the interest Prop. 8 proponents defended at trial is precisely the same as that which they would seek to vindicate on appeal. Ed Whelan has further thoughts here.

In Arizonans for Official English v. Arizona, cited by Judge Walker, the Supreme Court expressed “grave doubts” whether ballot initiative proponents had “standing under Article III to pursue appellate review.” The Court did not resolve the standing issue, however. It found the case moot and ordered it dismissed. In its discussion of standing the Court went on to explain that the initiative proponents were “not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article III qualified defenders of the measures they advocated.” Prop. 8 proponents, on the other hand, argue in their emergency motion for a stay that initiative proponents do have a right under California law to defend the proposition.

The California Supreme Court has granted the application of initiative proponents to defend initiatives they have sponsored but the State Attorney General and other public officials refuse to defend—indeed it has done so with respect to these Proponents and Proposition 8. SeeStrauss v. Horton, 207 P.3d 48, 69 (Cal. 2009); Order of Nov. 19, 2008, Strauss, Nos. S168047, S168066, S168078 (Cal.) (Doc. No. 8-10). California law thus allows proponents to defend initiatives they have sponsored when government officials “might not do so with vigor” in order “to guard the people’s right to exercise initiative power, a right that must be jealously defended by the courts.” Building Indus. Ass’n v. City of Camarillo, 718 P.2d 68, 75 (Cal. 1986). Thus, Proponents may directly assert the State’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing. See, e.g., Maine v. Taylor, 477 U.S. 131, 136-37 (1986); Diamondv.Charles, 476 U.S. 54, 62 (1986)

They further note that, under Diamond, state law may “create new interests, the invasion of which may confer standing.”

Another interesting twist is that Judge Walker denied the motion of Imperial County, California, and its officers — including the Deputy County Clerk — to intervene in defense of Proposition 8. (Curiously, however, he did not rule on this motion until the day he issued his decision; the order, Document No. 719, is not posted on the court’s “Case Filings and Documents of Special Interest” page.) Why does this matter? Under California law, the county clerk is a “commissioner of civil marriages” who may appoint “deputy commissioners of civil marriages who may solemnize marriages,” and is also responsible for issuing marriage licenses. As a consequence, the Deputy County Clerk’s official duties are controlled by Judge Walker’s decision — she must now issue marriage licenses to gay couples even though she believes this is contrary to valid state law — and this would seem to be sufficient interest to support standing on appeal. Imperial County and its officers have also filed notices of appeal of both Judge Walker’s ruling on the merits and his denial of their motion to intervene. As Prop. 8’s proponents argue in their emergency motion:

The district court denied Imperial County’s motion to intervene on the ground that it would not have standing to appeal an adverse judgment because the County’s “ministerial duties surrounding marriage are not affected by the constitutionality of Prop 8.” Doc. No. 709 at 17. This assertion is patently incorrect and almost certain to be reversed on appeal. True, Imperial County’s duties with respect to marriage are “ministerial,” but what that means is that they are directly controlled by operation of California law, including Proposition 8. See Lockyer v. City and County of San Francisco, 95 P.3d 459, 472-73 (Cal. 2004). Indeed, if a same-sex couple approaches Deputy Clerk Vargas for a marriage license, the constitutionality of Proposition 8 not only affects, but directly controls Vargas’s ministerial duty to grant or withhold the license. And if Vargas objected to Proposition 8’s constitutionality, California law vests her with “standing to bring a court action to challenge” it. Lockyer, 95 P.3d at 486 n.29 (emphases omitted). It would make little sense to maintain that Vargas has standing only to challenge, but not defend, the laws that govern her official actions. Indeed, a county clerk is not only a proper defendant in this action, but a necessary one. SeeWalker v. United States, No. 08-1314, 2008 U.S. Dist. LEXIS 107664, at *9 (S.D. Cal. Dec. 3, 2008) (dismissing suit challenging California’s ban on same-sex marriage that named only the Governor and Attorney General as defendants because “Plaintiff does not allege that either the Governor or the Attorney General were charged with the duty of issuing marriage licenses or directly denied him such a license in violation of the Constitution”).

As an academic, I find the standing issues in this case quite fascinating, and I will be very interested to see how they are resolved. If I had to guess, I ‘d say the Ninth Circuit will find standing, if not for Prop. 8’s backers at trial then for Imperial County, and the case will proceed accordingly, but we’ll see.